Two Courts Disagree On Whether Or Not A Website Can Be Forced To Remove User-Created Defamatory Content

from the section-230 dept

A little over a year ago, we discussed a district court ruling that said that the site Ripoff Report (and its parent company XCentric) was not required to remove content, even though the content had been found (in a default judgment, since the defendants did not show up) to be defamatory. The court ruled that Section 230 clearly protected Ripoff Report as a service provider from being liable for user actions. While some worried that this meant that it would be possible for defamatory content to not be removable, this seemed like an overreaction, and targeted the wrong issue. The real problem was with the default judgment practice, and the idea that just because you can't find the people actually liable, some people think it's okay to blame someone else instead. That's just not right.

Last week, in an appeal on that original case, the appeals court basically ruled the same way: Ripoff Report has no requirement to remove the content judged to be defamatory, because it is not a party to the lawsuit, and thanks to Section 230 it cannot be a party to that lawsuit. However, it is notable that Ripoff Report has put additional information on that page, indicating that the content was found to be defamatory, which more or less should alleviate much of the concern. Separately, as Eric Goldman notes in the link above, the fact that it's possible that defamatory content may be online with no way to take it down probably isn't a huge concern, as the situation is unlikely to happen all that frequently. Most sites seem willing to take down such content.

Separately, as Paul Levy astutely points out in his own analysis of the case, the courts in various states have made it clear that in order to deal with that pesky First Amendment issue, there shouldn't even be injunctions against defamatory speech -- only monetary awards:

I am much less worried about the normative consequences of holding that the web host can't be enjoined, because there is another significant problem with extending either injunction to Ripoff Report. There is a hoary doctrine holding that "equity will not enjoin a libel" -- that no matter how false and hurtful a statement may be, the only proper remedy for defamation is an award of damages, not an injunction.

And, indeed, this is probably how it should be. The way to deal with such speech is more speech.

Levy's link, unfortunately, shows that some courts don't recognize this, even in states whose laws are under this maxim. Levy notes that the day after the Seventh Circuit ruled in favor of Ripoff Report in the lawsuit above, a Florida state court granted a rather hasty temporary restraining order against Ripoff Report/XCentric, in a case with some similarities. It again involved charges of defamation. Ripoff Report was sued, but removed from the lawsuit thanks to Section 230. The woman who actually wrote the comment was also sued, and eventually settled, with a promise that she would make "good faith efforts" to remove content. Ripoff Report, famously, does not remove content (though, Levy notes that's not entirely true), so it refused. The plaintiff, John Giordano, asked the court for a temporary restraining order against Ripoff Report, requiring it to remove the comments. The court gave Ripoff Report one day's notice, before holding a hearing (Ripoff Report's lawyer had to call in from Arizona), and the court then granted the restraining order. Levy, again, explains why this ruling was clearly in error:

Part of the problem with the reasoning is that it is circular -- Xcentric is being ordered to take down the posting because it failed "to comply with [the previous] order," but that order did not compel XCentric to do anything; thus there was nothing for it not to comply with. And in other respects, the reasoning is just wrong. The order expressly treats XCentric as the "publisher" of the statements in defiance of the statute's express command that a provider of interactive computer services shall not be "treated" as the publisher of content provided by another; and the courts addressing section 230 have consistently agreed that the decision whether to remove posts is part of the "publisher" function that Congress intended to leave to web hosts' discretion. Nor does the court explain how it can issue the equitable remedy of an injunction -- especially an injunction forbidding speech -- against a party that has not been held liable for the speech.

Moreover, allowing motions for injunctive relief is inconsistent with the statutory language providing an immunity from suit as well as from liability, and with one of the basic reasons why host immunity is such an essential element of the system of online freedom of speech. Even if the host is protected against damages claims, the very need to respond to motions for injunctive relief imposes the expense of litigation and thus threatens to enable the heckler's veto that animated Congress to adopt Section 230 in the first place, and to make it a part of American law so fundamental that a foreign defamation judgment cannot be enforced in the United States unless it meets section 230's requirements. And hosts are understandably chary of being enjoined, because even if it is s very specific statement that has already been held to be false that is enjoined, the host has to worry about being held in contempt if somebody later posts that same statement online.

Also curiously not addressed by the Florida court was why it was entitled to issue a prior restraint on less than a full evidentiary hearing on the merits.... [In] many jurisdictions, the old rule that "equity will not enjoin a libel" remains good law to this day. But even the jurisdictions that allow the entry of a permanent injunction against speech after the defendant has had his day in court and a jury has decided that the enjoined speech is false, consistently hold that a preliminary injunction is a prior restraint. And as the Supreme Court said in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971), in overturning a preliminary injunction against leafleting on First Amendment grounds, "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices . . . warrants use of the injunctive power of a court."

Hopefully this temporary restraining order is overturned.

The larger point remains, however. Section 230 remains not just a good, but an important law in protecting third parties from being held liable for the speech of others. The worries that it creates problems in cases such as the first one above seem overblown. Such situations are not only rare, but it seems clear that they can be dealt with by people adding additional details that explain the nature of the content in question. And, in the end, that fits best with the First Amendment. The response to "bad" speech should not be to block it, but to encourage more speech. That's the end result of Section 230, and that should be seen as a good thing.

Reader Comments

Part of the problem is that defamatory speech, left up to be seen by an unlimited number of people, continues to create prejudice each day for the offended party. If the speech rises to the point where a judge feels that a case for defamation is made and likely to succeed on it's merits, the injunction is a no brainer.

The problem online is that "more speech" doesn't mean balancing speech. There is no simple way to assure that people can read the offending comment and the rebutting / correcting / updating reply at the same time. We are not pinned by the old style conventions of print media, which was the once printed, it is hard to take back sentiment. We can easily delete or lock up the offending speech, literally making corrections that help to remedy the situation.

Section 230 should not mean that action cannot be taken to deal with libelous, slanderous, or defaming documents. The real end result of Section 230 as suggested here is a smug sense of isolation and protection for site owners, who will not have any concern for the material that is published on their sites. It is a legal black hole that seems to greatly favor those making the bad speech, and puts those hurt by that speech at a loss for any legal remedy. That isn't a balanced system at all.

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"It is a legal black hole that seems to greatly favor those making the bad speech, and puts those hurt by that speech at a loss for any legal remedy"

Guy talks smack about you on the Internet, what do you do?

Do you go cry to mommy (the government...whatever) that the bad man said bad things about you? Or would you engage that person in a discussion and, instead of being an asshole and sue everyone, give an intellectual whooping on the smarmy git?

What approach do you find more reasonable? Unlike in print media, you can actually defend yourself with speech in the Internet....unless you have nothing to say, at which point, running to mommy becomes your only option.

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There is a couple of problems with your concepts:

There are an endless number of websites, and any one of the earths billions of people could go on any of those sites and say things about you. Should you, as an individual, be forced to spend your entire life online protecting your image against libelous, slanderous, or defaming speech? Should those who make this speech be able to get away scott free, and should the sites that publish this material be allowed to ignore the obvious ill intentioned statements and turn a blind eye?

Can you imagine? I could picture people having to hire specialist companies to search online to find these nasty postings, and then perhaps have one of their skilled staff craft a response in the person's name to some how perhaps mitigate the damage done. Even then, nothing would stop the hater from continuing to post and repost their hateful speech, their lies.

That is the unbalanced system, and the reasons why the court who issued the injuction got it right, there needs to be some balance.

Most of us don't have the time to spend on giving an "intellectual whooping on the smarmy git". That is what the courts are for.

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The problem is, it's generally impossible to unsay something once it's been publicly said. Dick Cheney proved that extremely well on the Senate floor. Yes, the original post could be deleted but you can bet your left testicle that in very short order the Streisand Effect will kick in. Plus dozens or hundreds of others then reporting that party A defamed party B, even quoting word for word, is completely legal.

Basically it all boils down to some people are assholes and there's not a damned thing that's ever going to change that. Take your damages award and call it a day because that's the best you can realistically hope for.

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The hope is that you get a couple of different things that can help to remedy the situation:

1 - removal of the original statements. Getting an injuction isn't (and should not be) easy, but if a judge can see where there may in fact be libel / slander / etc, moving to have the speech removed (or at least, taken from the public eye) until it can be decided in a court of law is a good first step.

2 - equal size, equal position retractions: These are hard to do in the digital age, but they can be had. It would depend on each case as to what that remedy might be, and

3 - exposure to the media that says "this guy lied / slandered / libeled the complainant". The true get back is when the complainant can publish in the media and on websites that "this person" or "this website" published material which was judged to be illegal for whatever reason, and that the statements made are not supported by fact.

While it isn't perfect, it is much better than having the publishing site hide behind Section 230, use legal tactics to block access to user information and logs, and generally get in the way of the plaintiff getting the results they are looking for.

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Getting an injuction isn't (and should not be) easy...

The poster above characterized it as a “no brainer”.

In copyright cases, we have seen how a presumption of irreparable harm has become established. And is now working its way towards automatic, strict suppression of speech which is alleged to aid and abet infringement.

Historically, from the colonial case of Zenger, through Near and Sullivan, we have seen that many judges will suppress speech which criticizes the government and offends the establishment.

There is a weighty reason why we have removed the power to censor from our government and courts. When insulated against criticism, the government drifts further and further into uncorrected error. But I fear that lesson is now too old to gain traction. It is probably only in the further course of human events...

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It's not that they're hiding behind anything so much as they were not the ones sued and found liable. As such, they could make a very valid claim that they cannot be made to surrender either liberty or property without their chance at due process of law. That is spelled out pretty plainly in the 5th and 14th amendments. Liberty being their right to operate their business as they see fit. Property being the cash they'd have to shell out to pay someone to comply with court orders otherwise.

It's really simple. If the government says you are violating a law and must make reparations, they have to give you a day in court beforehand. And since 230 expressly prohibits assigning any liability to service providers for users' comments, they wouldn't lose if they got one.

Coulda, shoulda, whatever, but he law says what the law says. Now if you want to propose a new law, such as requiring the service provider to make deletion or editing of their own posts available to users so that they can comply with court orders to remove what they've said, that's another matter entirely.

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Your logic is flawed because it allows the website publishers to put online comments of third parties that would make them liable if they said it themselves.

If the remark is offence / libelous / slanderous and would have to be removed is pasted in a public area, the rules should not be different for a website operator.

Would it be tolerable if Burger King allowed random people to post "McDonalds Makes their food with ground toilet paper" signs in the windows of the BK stores? Not only would the courts find that the speech is illegal, but they would also order it removed. In fact, you can bet that McDonalds would have an injunction within hours to get the signs removed pending legal action. We cannot grant online businesses more protection that is granted to the press or to other individuals in real life.

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If the remark is offence / libelous / slanderous and would have to be removed is pasted in a public area, the rules should not be different for a website operator.

Should not be, possibly, but they are what they are.

Terrible analogy by the way. Your example has BK requesting libelous speech which would definitely make them liable. A better one would be if they just didn't feel like painting the stall walls in the bathrooms because of libelous graffiti . I guarantee they would never be found liable or even have an injunction succeed requiring them to pay someone to paint the walls.

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Your example has BK requesting libelous speech which would definitely make them liable

No, my example wasn't them asking, it was only them allowing. They decide that their windows are now "public posting space" and don't do anything about what gets posted. Are they liable? Maybe. Would a court order them to remove such comments even before a court case? Damn right they would.

you are using the First Amendment to justify someone yelling fire in a theatre.

The poster got sued and has to pay for damages. Then tries to remove the content she posted. More than enough reason for the comment to be removed by a court order.

The site didn't make the comment. How does the site's free speech get restricted when they are not making the "speech"?

You also state "Section 230 remains not just a good, but an important law in protecting third parties from being held liable for the speech of others." This is not a question of liability on the part of the site. Just a court order removing content that shouldn't be there anymore.

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The poster got sued and has to pay for damages. Then tries to remove the content she posted. More than enough reason for the comment to be removed by a court order.

The site didn't make the comment. How does the site's free speech get restricted when they are not making the "speech"?

Let's say Public Figure A said something defamatory or libelous about Public Figure B and was quoted in a news story, then later they got sued for what they said. They ask the media outlet to retract the story to no avail. Is that "more than enough reason" for the story to be censored by a court order?

I know this situation is somewhat different, but with first amendment issues you have to consider the broader potential interpretations...

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So, you're saying that without being held liable for anything whatsoever and in fact being specifically protected from liability in these cases, the service provider should be on the hook for the effort of cleaning up every time one of their users preforms a bit of jackassery? I'm pretty sure that's exactly what 230 was meant to protect against.

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Part of the problem is "service providers" are often not just providers, but republishers that profit not from proving a blank hosting service, but rather by aggregating user submitted content (including postings) and assembling them together onto a published website. Right off the bat, they aren't just innocent providers, they are participants in the process. Section 230 wasn't intended to get publishers off the hook by saying "someone else did it", it was only really intended and aimed at things like hosting companies and and such.

he service provider should be on the hook for the effort of cleaning up every time one of their users preforms a bit of jackassery?

it is a two way street. They profit from the jackassery, as you call it, so they should also have responsibility for at least cleaning up after it. Their obligation should not be any different from any other form of publisher in the real world.

That's the state of American Law anymore. It's not up to the letter of the law because every law has been argued so many ways and pled out to mean nothing. Granny said: 'Stay away from Police, Lawyers, Judges and Politicians, they all lie for a living and you can't trust them.' I was proven correct when I was arrested for the first time at the age of 10 for begging. All I did is what my little black buddy did was ask a drunk for a dollar. He got away, I didn't. To serve and protect. Hah. Now you can't even get a cop to come out for a break-in, you have to file the report on the web site. Crime is about to go crazy in this country and I hope you have protection. Buy your own stun gun or taser NOW.

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I'll stick with my cabinet full of guns, thanks. I personally know guys who can take a stun gun hit to the chest and still be able to take it away and beat you to death with it. A shotgun blast to the chest? Not so much.

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That's the state of American Law anymore. It's not up to the letter of the law because every law has been argued so many ways and pled out to mean nothing.

I hate to break it to you, but American Law has, for the most part, never been about letter of the law. The federal rule, and most states, are based on "spirit of the law." Police officers/courts must enforce rules based on what congress/state governments meant when they put the law into effect.

However, equal enforcement of the law is a problem. Part of it is that there aren't enough cops on the street and part of it is that the cops that are out on the street aren't all-knowing and all-seeing. They saw you committing a crime and not the other guy, or the other guy had a better lawyer. Such is the risk/reward of the system we have (some people are quite happy with the current system because they are lucky and haven't been caught yet, while others get caught every time and hate the system.)

And though there could be some changes to the current system, it is better than what we could have (or as some believe, the system we will eventually have:) the one where a little black box issues tickets whenever you do something wrong, or one where you get accused of crimes you are innocent of and get thrown away.

A1

Amendment 1: the right to free speech. We have the right to speak freely as long as it does not cause harm to a business. That's what the founders of this country really meant when framing the constitution. As a nation we must interpret the constitution in modern terms. Two hundred plus years is a long time to keep outdated believes alive, e.g. right to bare arms, freedom to assemble, etc. We must now do what is in the "peoples" best interest, i.e. keep business ungodly profitable and free of any outmoded concept of responsibility.